FILED NOT FOR PUBLICATION JUL 6 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN FRANCISCO BERNABE, No. 17-72726 Petitioner, Agency No. A092-404-759 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 3, 2020** Pasadena, California Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,*** District Judge. Petitioner Juan Francisco Bernabe (Bernabe), a citizen of Guatemala, petitions for review of the decision of the Board of Immigration Appeals (BIA) * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. dismissing his appeal of the denial of asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). Substantial evidence supports the BIA’s determination that Bernabe failed to establish extraordinary circumstances beyond his control to justify the untimely filing of his asylum application. See Al Ramahi v. Holder, 725 F.3d 1133, 1138 (9th Cir. 2013) (applying substantial evidence standard). Bernabe has cited no persuasive authority that his pursuit of an adjustment of status constituted an exceptional circumstance. As the immigration judge (IJ) determined, Bernabe “has resided in the United States for multiple decades but did not file his [asylum application] until over five years after he was ordered removed in absentia.” Under these circumstances, Bernabe failed to adequately explain his failure to timely file his asylum application prior to 2010. See Husyev v. Mukasey, 528 F.3d 1172, 1181-82 (9th Cir. 2008). “To the extent that [Bernabe] asserts that the BIA . . . failed to consider some or all of [his] evidence [of changed circumstances], [he] has not overcome the presumption that the BIA did review the record.” Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (citation omitted). As reflected by its discussion of numerous documents in the record and Bernabe’s declaration, the BIA sufficiently reviewed the evidence submitted by Bernabe to support his claims. See Cole v. 2 Holder, 659 F.3d 762, 771 (9th Cir. 2011) (articulating that the BIA is not required to “discuss each piece of evidence submitted”). Substantial evidence supports the BIA’s determination that Bernabe failed to establish a clear probability of persecution or torture on an individualized basis. See Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010), as amended (explaining that “a petitioner’s membership in a disfavored group is not sufficient by itself to meet [his] ultimate burden of proof; some evidence of individualized risk is necessary for the petitioner to succeed”) (citation and internal quotation marks omitted) (emphases in the original); Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (stating that, for deferral of removal under the CAT, “the petitioner must demonstrate ...
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